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California Court Affirms Right to Gay Marriage

Stuart Gaffney, left, and John Lewis reacted to the California Supreme Court decision in San Francisco.Credit
Jim Wilson/The New York Times

The California Supreme Court, striking down two state laws that had limited marriages to unions between a man and a woman, ruled Thursday that same-sex couples have a constitutional right to marry.

The court’s 4-to-3 decision, drawing on a ruling six decades ago that struck down the state’s ban on interracial marriage, would make California only the second state, after Massachusetts, to allow same-sex marriages.

The decision, which becomes effective in 30 days unless the court grants a stay, was greeted with celebrations at San Francisco City Hall, where thousands of same-sex marriages were thrown out by the courts four years ago. It was denounced by religious and conservative groups, who pledged to support an initiative proposed for the November ballot that would amend California’s constitution to ban same-sex marriages and overturn the decision.

Same-sex marriage has been a highly contentious issue in past presidential and Congressional elections, but it was not immediately clear what role the ruling would play in this year’s elections. The Democratic and Republican candidates for president have all said that they believe marriage should be between a man and a woman, but Republicans could use a surge in same-sex marriages in the country’s most populous state to invigorate their conservative voters.

Given the historic, cultural, symbolic and constitutional significance of marriage, Chief Justice Ronald M. George wrote for the majority, the state cannot limit its availability to opposite-sex couples.

“In view of the substance and significance of the fundamental constitutional right to form a family relationship,” he wrote, “the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

Supporters of gay marriage said the ruling was a milestone. “This decision will give Americans the lived experience that ending exclusion from marriage helps families and harms no one,” said Evan Wolfson, executive director of Freedom to Marry, who noted that same-sex marriages are now legal in South Africa, Canada, Spain, Belgium and the Netherlands.

But opponents said they expected the proposed ballot initiative, which has been submitted to state election officials with more than one million signatures, to pass in November.

“The court was wrong from top to bottom on this one,” said Maggie Gallagher, president of the National Organization for Marriage. “The court brushed aside the entire history and meaning of marriage in our tradition.”

There about 110,000 same-sex couples in California, according to census data, and the state has a strong domestic partnership law giving couples who register nearly all of the benefits and burdens of heterosexual marriage. But the majority of the justices said that is not enough.

The court left open the possibility that the Legislature could use a term other than “marriage” to denote state-sanctioned unions so long as that term was used across the board — for both opposite-sex and same-sex couples.

The state’s ban on same-sex marriage was based on a law enacted by the legislature in 1977 and a statewide initiative approved by the voters in 2000, both defining marriage as limited to unions between a man and a woman. The question before the court was whether those laws violated provisions of the state Constitution protecting equality and fundamental rights.

Mathew D. Staver, a lawyer with Liberty Counsel, a public interest firm that defends traditional marriage, said it would ask the court to stay its decision until the election in November, meaning that Thursday’s decision could be overturned before it becomes effective.

“It would only be logical” for the court to grant a stay, Mr. Staver said, given the confusion that would arise if same-sex marriages were available for only a few months.

Governor Arnold Schwarzenegger, a Republican, said in a statement that he respected the court’s ruling and did not support a constitutional amendment to overturn it.

In a dissenting opinion, Justice Marvin R. Baxter said the majority should have deferred to the state Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years.

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“But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”

Also dissenting, Justice Carol A. Corrigan wrote that her personal sympathies were with the plaintiffs challenging the bans on same-sex marriage. But she said the courts should allow the political process to address the issue.

“We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root,” Justice Corrigan wrote. “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

The Supreme Court was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The vote in Perez, like the one in Thursday’s decision, was 4-to-3. The United States Supreme Court did not follow suit until 1967.

At present, six of the seven justices on the California court, including all of the dissenters, were appointed by Republican governors.

Thursday’s decision was rooted in two rationales, and both drew on the Perez decision.

The first was that marriage is a fundamental constitutional right. “The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”

Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” the chief justice continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.

In a second rationale from the interracial marriage case, the court struck down the laws banning same-sex marriage on equal protection grounds, also adopting a new standard of review in the process.

When courts weigh whether distinctions among people or groups violate the right to equal protection, they general require only a rational basis for the distinction, a relatively easy standard to meet. But when the discrimination is based on race, sex or religion, the courts generally require a more substantial justification.

Discrimination on the basis of sexual orientation, the majority ruled Thursday, also requires that sort of more rigorous justification. The court acknowledged that it was the first state high court to adopt the standard, strict scrutiny, in sexual orientation cases.

Lawyers for the state identified two interests to justify reserving the term marriage for heterosexual unions: tradition and the will of the majority. Chief Justice George said neither was sufficient.

Still, Chief Justice George took pains to emphasize the limits of the majority’s ruling. It does not require ministers, priests or rabbis to perform same-sex marriages, he said.

He added that the decision “does not affect the constitutional validity of the existing prohibitions against polygamy and the marriage of close relatives.”

Other state high courts to consider the question of gay marriage in recent years, including those in New York, New Jersey and Washington, have been closely divided but stopped short of striking down state laws forbidding it. A decision from the Connecticut Supreme Court is expected shortly.